Thursday, January 18, 2007

Outrageous DEA medical marijuana raids

For starters, here's a downloadable pdf file from Americans for Safe access on the dispensary phenomenon. It makes clear that although dispensaries were not mentioned in Prop. 215, the law approved by 56 percent of California voters in 1996 to permit patients with a recommendation from a duly licensed physician to grow, possess and use merijuana medically, it did direct officials to set up a safe and legal distribution system.

SB 420, passed in 2003 by the state legislature, "expressly allows medical marijuana to be cultivated collectively by qualified patients and primary caregivers, and, by necessary implication, distributed among the collective's members." This interpretation was upheld in 2005 by California's Third District Court of Appeal in People v. Urziceanu. So cannabis dispensaries are legal under California law. To try to close down dispensaries is to push valid patients into the black market, something especially problematic for older patients with no experience going after the illicit (though most teenagers could tell you where to get it).

It's still unknown to what extent local law enforcement cooperated with or facilitated with the federal stormtrooper-like raids. But LAPD Chief Bill Bratton has asked for a moratorium on new dispensaries and has been quoted as saying "It's my intent to get rid of these places." Mr. Bratton should be reminded that he is a state law enforcement officer, not a federal enforcer. His duty under the California Constitution is to enforce state law, not federal law. The state constitution has a clause saying that if a California law appears to conflict with federal law, state officers' duty is to enforce California law unless and until a court overturns the state law. That hasn't happened. An attempt by three counties to invalidate Prop. 215 was thrown out of court in December.

To be sure, the feds can argue that marijuana is still strictly prohibited under federal law, and the U.S. Supreme Court has approved that interpretation. However, the Controlled Substances Act, the relevant federal statute, says that for drugs to be placed on Schedule I, which allows for no use whatsoever, it must meet these criteria:

"a) The drug or other substance has a high potential for abuse, b) The drug or other substance has no currently accepted medical use in treatment in the United States, c) There is a lack of accepted safety for use of the drug or other substance under medical supervision."

Marijuana meets none of these criteria. I believe it is illegally classified as Schedule I under the applicable law. However no court has ruled on this contention, and since applications for rescheduling are handled administratively, with the head honcho of the DEA having the final word, it's unlikely to get to a court. The only court-like body to consider the issue, a panel headed by Administrative Law Judge Francis Young of the DEA itself, concluded in 1988 that "It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record."

Naturally, the head of the DEA at the time did the unreasonable, arbitrary and capricious thing and kept cannabis on Schedule I.

No charges have been filed against those operating the dispensaries yet, though several were taken into custody. If no charges end up being filed, the raids will be revealed for what they are: a bunch of thugs steaking property under color of law and acting in a way that is morally indistinguishable from terrorists.